Author: Vadym Chovgan

Publisher: Expert Center for Human Rights

Published: 2021-01-03

Total Pages: 21

ISBN-13:

Progressive criminal justice systems are increasingly paying attention to the need to protect victims psychologically, physically, financially and legally. The so-called “victim-oriented approach” is becoming a popular tendency. This approach assumes that the victim, his/her protection and interests should be more prioritized in the criminal process. Such an approach requires balancing of this process taking into account victims’ interests, especially where the focus has been on the offender. In the post-Soviet countries, the retributive system still prevails: the key is the retribution to the offender and bringing him to justice. However, under such a system, victims of crime and their violated rights remain in the shadow. Ukrainian law contains a wide range of victims’ rights allowing them to actively participate in the investigation of crime and subsequent trial. However, in practice many of them remain a declaration. Moreover, the national criminal justice system sometimes not only does not restore violated rights, but also causes to victims repeated psychological trauma – secondary victimization. The very concept of protecting the victim from secondary victimization is unknown to the Ukrainian law and practice. Of all the offences, violent crimes have the most devastating consequences. The right to life and physical integrity is fundamental, and its violation has particularly serious consequences for victims, their relatives and society as a whole. Moreover, the process of investigating these crimes carries the high risk of secondary victim-isation1. It can cause moral suffering of victims who are forced to experience the negative psychological consequences of the crime over and over again2. The legal concept of violence has been constantly changing. At present, it covers not only physical but also psychological, economic, sexual and other violence. However, the Criminal Code of Ukraine does not contain a separate list of violent crimes. Therefore, for the purposes of this study, we analysed the state of protection of victims from the most typical violent crimes: premeditated murder (Article 115 of the Criminal Code); bodily injuries of all degrees (Articles 121, 122, 125 of the Criminal Code); domestic violence (Article 126-1 of the Criminal Code); rape (Article 152 of the Criminal Code), sexual violence (Article 153 of the Criminal Code); theft committed publicly and combined with violence (Part 2 of Article 186 of the Criminal Code); robbery (Article 187 of the Criminal Code). The number of victims of crime remains consistently high: 374 thousand in 2017, 345 thousand in 2018, 302 thousand in 2019. Of them have died as a consequence of crime 6.5 thousand (2017), 6.2 thousand (2018), 5.8 thousand (2019)3. The Ministry of Justice of Ukraine estimates that in 2018, the most serious intentional violent crimes in Ukraine caused death or bodily injuries to 24.4 thousand victims. In this context, the authors of the present study set themselves the goal to analyse in detail the existing legal framework on the rights of victims as well as the practice of its application. Further, our analysis will be carried out from the point of view of modern standards of victims’ rights, which are little known in Ukraine. First of all, we drew attention to the state of implementation of the European Union Directive establishing minimum standards on the rights, support and protection of victims of crime. This document is not binding for Ukraine, but it needs to be implemented in our country in terms of the European Union integration process. The Directive has become a powerful tool for protecting the rights of victims in the EU countries and it requires regular reporting by the EU member states on the status of its implementation. However, the standards provided by the Directive, in particular as regards protection against secondary victimization, are not yet reflected in the national legislation, despite the EU’s efforts to implement them in Ukraine. Moreover, these standards for the protection of victims’ rights have not been implemented, despite the fact that they are also contained in the Council of Europe on assistance to crime victims, and Ukraine is a member of this organisation7. The standards of protection of victims are comprehensive as they relate not only to the procedural aspects of the investigation and trial, but also to providing support to victims, such as psychological support. Therefore, our study focuses not only on the legal aspects of victims’ protection, but also on the mechanisms of support and protection of victims by the state. Another aspect that we will pay attention to is the compensation of victims for the damage caused by crimes. Ukraine has not yet established a mechanism to compensate victims of violent crimes, despite the signing and efforts to ratify the relevant Council of Europe convention. Thus, we will analyse the existing compensation practices in the context of lack of such a mechanism. The above-mentioned Council of Europe recommendation encourages States to promote and support research on the protection of victims. Among other things, such studies should focus on: – criminal victimisation and its impact on victims; – the effectiveness of legislative and other measures for the support and protection of victims of crime – both in criminal justice and in the community; – the effectiveness of intervention by criminal justice agencies and victim services (paragraph 17 of the Recommendation). We hope that our study adheres to these guidelines, and will be a fertile ground for further development of research in the sphere of protection of victims’ rights in Ukraine.